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Public International LAW E-Content for LL.B Public International LAW (LL.B. IVth semester) Topic - Acquisition of State Territory (Set -iv) Dr. Shiv Shankar Singh Assistant Professor Faculty of Law, Patna Law College, Patna University, Patna Email id. - [email protected] Mo. No. - 8986031942 e-Content for LL.B. (IVth Semester) Students of Patna Law College, Patna University, Patna Acquisition of State Territory a. Sovereign State Territory Sovereignty is the complete territorial jurisdiction of a country over a territory, as recognized by other countries. In the modern age, the state not only includes the territory of land but that of adjacent waters as well. There are several other types of sovereignty, however, emergent in the present day. These are called Condominiums, in which case either two countries jointly control territory, or the territory is leased to another country, or territory is pledged to another country as collateral against a loan. The researcher then goes into the importance of the state boundaries and that secession of states from the parent state should not in any way affect the interstate boundaries that the seceded state has with other states. Globalization has changed the nature of populations, leaving traces of all countries in the populations of other countries. The researcher opines that international law needs to be redeveloped to accommodate such changing trends. b. Introduction of Sovereignty The sovereignty of a state is confined to a defined piece of territory, which is subject to the exclusive jurisdiction of the state and is protected by international law from violation by other states. It is inherent in statehood that there should be a core territory that is subject to the effective control of the authorities of the state. State territory is that defined portion of the globe which is subject to the sovereignty of a state. Here the word globe is used as state territory includes not only land but also the national or internal waters, archipelagic waters, and airspace that falls under the jurisdiction of that particular state. Within the state territory, the state exercises exclusive and supreme authority. According to the maxim quidquid est in territorio est etiam de territorio, all individuals and all property within the territory of a state are under its dominion and sway, and foreign individuals and property fall at once under the territorial authority of a state when they cross its frontiers. Article 2.4 of the United Nations Charter requires members to ‘refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any State’. Hence, we can see how the need for territory is of prime importance for a State to exist. A wandering tribe may have a government but it cannot count as a state unless it has a territory that it has exclusive rights over. The above discussion gives the impression that there could be only one full sovereign state and it is not possible for two or more sovereign states to exist on the same territory. However, this is not completely true and some exceptions have been created to this rule over the years. We shall discuss a few examples of such divided sovereignty. Condominium It is a political territory in or over which two or more sovereign powers formally agree to share equally dominium (in the sense of sovereignty) and exercise their rights jointly, without dividing it up into ‘national’ zones. Sudan, for example, was under the condominium of Great Britain and Egypt from 1898 to 1955. The Anglo – Egyptian agreement on Sudan was signed on 19th January 1899, by Lord Cromer, the British counsel-general in Egypt, and Boutros Ghali Pasha, the Egyptian minister of foreign affairs. Since Egypt itself was occupied by the British, the agreement legalized British control of Sudan and framed it as an Anglo-Egyptian rule and administration. This condominium ended when the Sudanese Parliament voted a Declaration establishing Sudan as a fully sovereign republic in 1955 which was formally agreed to by Egypt and UK on 31st December. In some cases, one state exercises sovereignty which is, in law, vested elsewhere: as where territory is administered by a foreign power, with the consent of the owner state. An example of this is when the Turkish island of Cyprus was under British administration from 1878 to 1914. Basically, in these instances there is a cession of territories for all practical purposes however under the law the territory still belongs to the former owner-state. Another exception is when the territory is leased or pledged by the owner- state to another foreign power. A state may lease part of its territory to another state on certain terms and conditions of the lease or pledge it to another foreign power for a loan. The most famous example of this is “Chinese leases”. Hong Kong was leased to Great Britain by China for a period of about 99 years. The fourth case is when the use, occupation, and control of territory are granted by the owner-state to another state perpetually, to the exclusion of exercise of any sovereign rights over that territory by the grantor. Literally speaking even federal states can be brought under this exception. In federal states different territories of single member states are collectively also the territory of the federal state and sovereignty is divided between a federal state and its member states. Lastly, there is the case of mandated and trusteeship territory. Here also the trustee state exercises most of the attributes of sovereignty over states that are not its own. Now we shall briefly discuss the different parts of State Territory. If a state has a seacoast, certain waters which are within or adjacent to its land boundaries also become state territory. These include internal or national waters and territorial sea. National waters consist of lakes, canals, rivers, and their mouths etc-. Internal waters are legally equivalent to a state’s land and are entirely subject to its territorial sovereignty. Territorial sea, on the other hand, is the continuous belt of sea waters, adjacent to the coast of a state and thus includes waters of the bays, gulfs, and straits. The seabed and subsoil of the territorial sea along with the airspace above it also fall within the sovereignty of the coastal state. There are maritime areas where coastal states enjoy limited rights of jurisdiction. fishing zones, for example, these states enjoy only certain prior rights to jurisdiction and control, however, they have exclusive and sovereign rights in an ‘exclusive economic zone’. Another interesting aspect of state territory is outer space. The first principle was that a state’s sovereignty extends over its airspace usque ad coelum. This was until 1957 when Sputnik was launched. Soon a new principle of law emerged. It was generally accepted that outer space and celestial bodies are not subject to appropriation by states and are to be used for peaceful purposes. Boundaries of state territory are the imaginary lines on the surface of the earth which separate the territory of one state from another, or from inappropriate property or from the open sea. Practically speaking the usual practice with regard to land boundaries is, to describe the boundary line i.e. to ‘delimit’ it; and then to appoint boundary commissions to apply the delimitation to the ground and if necessary mark it with posts or the like, as in to ‘demarcate’ it. Article 11 of the Convention on Succession of States says that a succession of states doesn’t affect a boundary established by a treaty, or obligations and rights established by a treaty and relating to the regime of a boundary. The law clearly states that a boundary established by a treaty is not to be called into question merely by the fact of succession of states or the change in circumstances since the treaty was made, however, it is not correct to say that boundaries established by treaty cannot be questioned at all. State boundary forms a very important part of a nation and disputes relating to boundaries are very common. The correct interpretation of the instruments by which that boundary was established is looked into to decide the location of a land boundary under dispute. In other cases, arbitral awards or judicial decisions may be used to decide in cases, especially where the meaning of a boundary treaty is being questioned. It is to be kept in mind that one of the primary objects of the tribunals while solving such disputes of boundary settlements is ‘to achieve stability and finality’. Here it is necessary to examine the doctrine of uti possidetis juris, which is a principle of international law which provides that newly formed sovereign states should have the same borders that their preceding dependent area had before their independence. It is often applied to prevent foreign intervention by eliminating any contested terra nullius, or no man’s land, that foreign powers could claim. Terra nullius is a Latin expression used in international law to describe territory which has never been subject to the sovereignty of any state, or over which any prior sovereign has expressly or implicitly relinquished sovereignty. This doctrine of uti possedetis juris was adopted by the Spanish-American states after they had gained independence. It intended to solve or avoid any sort of boundary problems between countries. However, in practice owing to the uncertainty of many Spanish colonial administrative boundaries at that time there were no clear and certain answers to the boundary disputes. ############ .
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